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Copyright Implications of Selling Educational courses Offshore

Copyright owners control the right to publish, copy, adapt and authorize use of their works.  Problems arise when educational institutions use copyright material in courses which they wish to sell offshore.  They have to consider what their rights are in New Zealand to include such material and what the situation is if they are copied further in the country of destination?

Most educational institutions in New Zealand have a copyright licence with Copyright Licensing Ltd (CLL) which provides for the copying of extracts from copyright works for distribution to students enrolled in courses at that institution.  This licence does not extend to making copyright material available to institutions overseas.  Unfortunately, a number of educators are under the impression that it does.

Although international copyright law is governed by a number of conventions, agreements and treaties, copyright law varies from country to country.  One of the requirements of the Berne Convention is that countries signed to the Convention exercise national treatment in their administration of copyright.  This means that foreign copyright owners in countries which are signatories to the Berne Convention are afforded the same level of protection as national copyright owners.  Therefore the copyright laws of each country apply to all copyright use within that country.

If an educational institution prepares a course designed for delivery at an overseas institution, then any copyright material used within that course must be authorised both in the country of origin and the country of destination.  If the course is being developed for sale to the overseas institution, then, in the first instance (ie in the development of the course), the copyright material is being used for a commercial purpose.  In the country of destination it is likely to be used for educational purposes.  Whatever the purpose, the copyright owner is entitled to expect payment for use. 

The copyright material could not be copied under the CLL licence as this only covers copying for students enrolled with the licensed institution.   Unless the material can be copied under one of the "fair dealing" exceptions provided in the New Zealand Copyright Act 1994 (the Act) it must be cleared for use by the copyright owner.  If it is merely a small identified extract used for "criticism or review" it is likely to be covered by Section 42 of the Act.  However, it is unlikely to be seen as coming within any other of the fair dealing provisions of the Act.   

Clearly, the ability to clear copyright for use in courses or coursepacks sold to overseas institutions through a centralized clearance system like that currently provided by CLL would be of benefit to New Zealand institutions developing such courses.  However, it is not that simple because the material is being copied in two different countries for two different reasons:  commercial purposes in New Zealand, educational purposes in the country of destination.  And for each country to which the course is sold, consideration will have to be given to the copyright law in that country.  If the course is being sold to a country that has inadequate copyright protection and no copyright collecting agency (like CLL), then the copyright owner is likely to seek payment for both the copying in New Zealand and in the other country.  Where the course is being sold to a country which has copyright laws that provide appropriate protection in line with the Berne Convention and TRIPS Agreement, then two separate licences are likely to be required:  one for the copying in New Zealand and another for the copying in the destination country. 

Whatever the situation, Kathy Sheat at Copyright Licensing Ltd is happy to work with educational institutions in obtaining appropriate clearances for the inclusion of copyright material in educational courses sold offshore.

Phone 0800 480 271; email ksheat@copyright.co.nz

www.copyright.co.nzCopyright owners control the right to publish, copy, adapt and authorize use of their works. Problems arise when educational institutions use copyright material in courses which they wish to sell offshore. They have to consider what their rights are in New Zealand to include such material and what the situation is if they are copied further in the country of destination?

Most educational institutions in New Zealand have a copyright licence with Copyright Licensing Ltd (CLL) which provides for the copying of extracts from copyright works for distribution to students enrolled in courses at that institution. This licence does not extend to making copyright material available to institutions overseas. Unfortunately, a number of educators are under the impression that it does.

Although international copyright law is governed by a number of conventions, agreements and treaties, copyright law varies from country to country. One of the requirements of the Berne Convention is that countries signed to the Convention exercise national treatment in their administration of copyright. This means that foreign copyright owners in countries which are signatories to the Berne Convention are afforded the same level of protection as national copyright owners. Therefore the copyright laws of each country apply to all copyright use within that country.

If an educational institution prepares a course designed for delivery at an overseas institution, then any copyright material used within that course must be authorised both in the country of origin and the country of destination. If the course is being developed for sale to the overseas institution, then, in the first instance (ie in the development of the course), the copyright material is being used for a commercial purpose. In the country of destination it is likely to be used for educational purposes. Whatever the purpose, the copyright owner is entitled to expect payment for use.

The copyright material could not be copied under the CLL licence as this only covers copying for students enrolled with the licensed institution. Unless the material can be copied under one of the "fair dealing" exceptions provided in the New Zealand Copyright Act 1994 (the Act) it must be cleared for use by the copyright owner. If it is merely a small identified extract used for "criticism or review" it is likely to be covered by Section 42 of the Act. However, it is unlikely to be seen as coming within any other of the fair dealing provisions of the Act.

Clearly, the ability to clear copyright for use in courses or coursepacks sold to overseas institutions through a centralized clearance system like that currently provided by CLL would be of benefit to New Zealand institutions developing such courses. However, it is not that simple because the material is being copied in two different countries for two different reasons: commercial purposes in New Zealand, educational purposes in the country of destination. And for each country to which the course is sold, consideration will have to be given to the copyright law in that country. If the course is being sold to a country that has inadequate copyright protection and no copyright collecting agency (like CLL), then the copyright owner is likely to seek payment for both the copying in New Zealand and in the other country. Where the course is being sold to a country which has copyright laws that provide appropriate protection in line with the Berne Convention and TRIPS Agreement, then two separate licences are likely to be required: one for the copying in New Zealand and another for the copying in the destination country.

Whatever the situation, Kathy Sheat at Copyright Licensing Ltd is happy to work with educational institutions in obtaining appropriate clearances for the inclusion of copyright material in educational courses sold offshore.

Kathy Sheat, Chief Executive Officer, Copyright Licensing Ltd
Phone 0800 480 271; email ksheat@copyright.co.nz
www.copyright.co.nz